TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 46

000

GUVERNMENT HUUSE

HUNG KUNG

4-23 8:32

PHGE 25

CONFIDENTIAL

23

(2) The office of "magistrates" falls within the meaning of

word "judges" and/or "Justices of peace" in Article xiv.

the

Carltona

the

not a

(3) The common law doctrine deriving from the case of

v. Commissioner of Works [1943] 2 All ER 560 applies to

and functions of the Governor. This is powers principle of delegation but is a doctrine of necessity which enables certain acts of the Governor to be performed by nis

subordinate officers in his name and on his benalt.

Such

doctrine does not extend to the power and auty judicial officers including magistrates.

Co

appoint

(4) Even if (contrary to (3) above) the Carltona principle

applied

did not

executive

to the appointment of magistrates,

the

ΟΙ exercise

such

principle

1/1 Lie

vestea powers permit

branch of the Government (such as or

of judges) to be exercised by a memoer OL

the Government (such as the judiciary).

appointment

anoliEL pranuli

UL

Thus, any purported

(5)

exercise

the Chief Justice of the Governor' by

appoint Juages and magistrates was

invallu.

power

to

SUD

As the power under Article xiv is not delegaDLE delegable, the Governor cannot by exercising his power under

Article II to make laws for the peace, order government of Hong Kong to pass legislation which

effect

sub-delegating his power

of

Article xlv.

delegating

or

and

good

has the

under

(6)

In

any event, the power under section 5 of the

Magistrates

CONFIDENTIAL